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Q & A with Clarissa- At what age can my children choose where they want to live?

25/04/2017Author: Clarissa Rayward

“My son is almost 14 and daughter almost 12. There is a current order in place dated 2015, however, both of our children are asking to change the arrangements that are set down in the order. At what age do children get to choose their preference for living arrangements? How do we go about changing arrangements without costly mediation and court?”

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This is such a great question to kick off my new Q and A segment. It is a question I am often asked in my role as a Family Lawyer and that I bet many of you reading this often wonder- at what age do our kids get to choose their living arrangements after separation?

Well on one hand this is a simple one to answer but then there are the realities of life with kids (particularly teenagers) that are so much more complex in practice.

So here is the simple answer- at law, children don’t get to choose their living arrangements until they are adults- in other words when they turn 18.

But life is never quite that simple and we all know as parents that children (even toddlers!) have plenty of views about their lives that they are only too happy to share with us.

When it comes to making decisions about the living arrangements for children after the separation of their parents, The Family Law Act (‘The Act’) applies where parents cannot otherwise agree. Under the Act, the arrangements for children after separation are to be in their ‘best interests’. To determine just what is in the ‘best interests’ of children, the Act sets out a series of objects and principles that are to be considered and applied[1].

One of those principles requires that any views expressed by a child be taken into account when determining what is in their best interests- importantly, however those views need to be seen in context- in other words the maturity and level of understanding of the child will also be considered when determining how much weight should be given to a child’s view.

So let’s make sense of this!

I have a 5 year old daughter. She is a ‘spirited child’ (as we like to call it- others might say mischievous and determined to get her own way!) My daughter has little difficulty in expressing her views about a lot of things but she is 5! Her understanding of the world and all of its complexities is limited. She is still so young and if her father and I were to separate it is unlikely she could offer views that would fairly represent her feelings at such an age.

By comparison I have regularly been asked to represent children in the Family Courts in the role of Independent Children’s Lawyer. I remember well one case involving a young girl who was only 9 years of age who had sadly not had any time or relationship with her mother since she was around 2. Now at 9 she was openly and forcefully refusing to spend time and engage with her mother. Ultimately the mother stepped away from the application, taking into account the very strong views of her daughter at that time.

Here is the interesting thing though- a few years down the track I heard from the mother in that case and she informed me that she and her daughter had managed to rebuild their relationship once her daughter became a young adult.

Just like us adults, children’s views and wishes can change. Sometimes that change is a natural course of events- for example teenagers becoming more independent, seeking less time with their parents and more time with their peers. While in some cases a change in a child’s views about a parenting arrangement can be as a result of poor experiences with that parent. But the views and wishes of a child are never static- they are growing, changing and developing every day which is part of why it can be so challenging as a parent to establish just what your child’s wishes might really be.

So to help you answer the question you asked of me, I would start by really thinking about your kids and their lives to better understand the views they are expressing. Try and be objective (easier said than done mind you!)

How are they travelling at school?

Have there been any changes in their routines- for example have either of you moved house, have they changed schools?

What is the same and what is different in terms of their routines now as compared to 2015 when you first had Orders put in place?

Now that you have two teenagers at home, it might be a good time to discuss with your former partner their living arrangements and perhaps make some changes. You could start by trying to speak directly- perhaps agreeing to meet at a neutral place at a time that ensures you can both be as relaxed as possible.

Mediation is also a great forum for these sorts of difficult conversations and you could also consider using ‘Child Informed Mediation’. This involves engaging a child and family specialist to spend some time with you, your children and their father before the mediation to get to better know your family. That professional will be able to speak with your children and assess their views on the living arrangements and broader family dynamics. Prior to your mediation the child expert would then give you their feedback about the children’s views and any changes that might be helpful moving forward. I have found this to be really helpful and that feedback can be used during the mediation to help you discuss any changes to the current arrangements. Mediation is offered free of charge by the various Family Relationship Centres around the country or you can engage a qualified Family Mediator privately.

As parents, we just want the best for our children. What is ‘best’ is ultimately a subjective decision and it is common for two parents living in a happy marriage to have differing views on just what is best for their kids. It is no surprise that after separation- when relationships are fractured and tense- our different views about what is best for our children suddenly become stark. Parenting is a life long role full of opportunity and challenge so take your time, look for advice and support and remind yourself you are doing your best no matter the challenges.

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Clarissa Rayward is a Divorce Lawyer & Mediator and the Owner of Brisbane Family Law Centre. over the past 14 years, Clarissa has worked with over 2000 families during separation and divorce. She specialises in assisting her clients to experience a dignified divorce- staying away from the Court process and finding sustainable agreements for the future.

If you or someone you know needs assistance during divorce you can organise a complimentary 15 minute phone appointment with Clarissa or one of her team here.